Analysis Law and Policy

With Sessions Poised for Attorney General, Civil Rights Laws Face a Significant Rollback

Jessica Mason Pieklo

Sen. Jeff Sessions (R-AL) has not yet been confirmed as U.S. attorney general, yet the total attack on civil rights has already begun.

On Wednesday, the Senate Judiciary Committee advanced the nomination of Sen. Jefferson Beauregard Sessions III (R-AL) for U.S. attorney general. His nomination now moves to the full Senate, where he will very likely be confirmed.

That vote is, in many ways, a formality. By all appearances, Sessions has, in one way or another, been directing the Trump administration’s U.S. Department of Justice as its de facto leader since his nomination.

Once confirmed, the man who called the Voting Rights Act (VRA) of 1965 “intrusive” and cheered the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder that gutted said act as a “good day for the South” will be in charge of enforcing voting rights across the country.

A very concrete example of what the Department of Justice under Sessions will look like is unfolding in Texas. There, the state’s strict voter identification law has been wrapped up in litigation. That law mandates in-person voters present government-issued photo IDs, which include a Texas driver’s license, a Texas election identification certificate, or a conceal and carry permit. Federal or state government IDs or student IDs are not allowed.

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Voting rights advocates sued, arguing, among other things, that the law violated Section 2 of the VRA. Section 2 bans practices that make it more difficult for certain voters to “participate in the political process” and “elect representatives of their choice.” It is designed to protect against voting restrictions like Texas’ voter ID law or the racial gerrymandering cases working their way through the courts, which are systemic changes that make it difficult for voters of color to participate in the electoral process, thus diluting their electoral voice. Section 2 is the last bit of the VRA that has real enforcement power in the wake of Shelby Co., so naturally conservatives are gunning for it.

The Texas case is now back to the lower court for more proceedings, with hearings scheduled for late January. On January 20, the day President Trump took office, the Department of Justice filed a motion with that lower court asking the case be put on hold for 30 days to “brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.” Sessions wasn’t even near a vote.

The case is now on hold.

Meanwhile, the Trump-appointed leader of the DOJ’s crucially important Civil Rights Division is John Gore, a proponent of voter ID laws and racial gerrymandering. There’s every reason to think the administration is changing course and prepping to not just defend the Texas law, but introduce national voter ID legislation.

The effect of such legislation would be to gut voting rights en masse.

It’s not just voting rights that are under very real threat with Sessions as Attorney General. The Washington Post reported that Sessions’ work is all over the president’s recent executive orders and actions, including the Refugee and Visa Order that effectively act as a Muslim travel ban. As the Post noted, Sessions’ mentee and Trump senior policy adviser Stephen Miller spent the weekend overseeing that ban. Given Sessions’ past record opposing civil rights, there’s every reason to think he had a hand in the possibly forthcoming horrific religious imposition executive order. That order would carve out religious exemptions broad enough to enshrine anti-LGBTQ discrimination nationwide and put countless numbers of people at risk by allowing individuals to use religious belief as a shield from complying with such things as child welfare statutes.

There are also the ongoing protests over the Dakota pipeline, police brutality, and immigration law changes. As attorney general, Sessions would oversee federal law enforcement’s response to those protesters. Sessions has already promised his will be a “law and order” DOJ. Historically, a “law and order” Department of Justice means a DOJ willing to use the power of the federal government, and specifically federal law enforcement, to squash political dissent. As the brilliant Michelle Alexander explained in her book The New Jim Crow, law and order policing like the kind promised by Sessions is a racial dogwhistle: a “language accompanied by a political movement that succeeded in putting the vast majority of blacks back in their place.”

That also means it is unlikely that Sessions will take claims of discriminatory policing seriously; nor is his Justice Department likely to move quickly on investigating such claims.

There’s also a very concrete example of how Sessions and his Department of Justice will handle dissent happening right now. Sally Yates was acting attorney general until just a few days ago, when Trump fired her after she said that she would refuse to enforce his Muslim travel ban. In announcing her termination, Trump called Yates, a highly esteemed prosecutor with decades of experience, “a disgrace” to the Department of Justice for what amounted to professional dissent. Not since Nixon has a president fired an acting attorney general, especially when another one is not yet in place.

If Sessions was involved at least to some degree in drafting the Muslim ban, however, he would never keep on as an attorney someone who, as a matter of law, disagrees with the action the administration is taking.

So far, at least four federal courts have agreed with Yates’ assessment of the Refugee and Visa Order and blocked at least some or part of that ban. It doesn’t appear the Trump administration cares. Attorneys in Virginia, one of the states with a court order in place, filed a motion for contempt late Wednesday, arguing the administration was continuing with deportations in flagrant violation of federal court order.

Sessions’ appointment is also critically important, given at least some of Trump’s orders will land before the Roberts Court. As a top adviser and future attorney general, Sessions—alongside Trump adviser and white nationalist Steve Bannon—is helping hand-pick the type of ideology that is going to drive the Court for decades to come. For example, Trump’s current nominee, Judge Neil Gorsuch, has not just endorsed corporate religious rights like those to be enshrined in the religious exemption orders in judicial opinions, but those opinions have in large part been picked up by the conservative wing of the Roberts Court.

It’s not even a full two weeks into the Trump administration, but already its actions have made clear it plans a full-on assault on civil rights. And as chaotic as the past weeks have been, things will only get more difficult for those fighting for equality under the likely future Attorney General of the United States Jefferson Beauregard Sessions III.

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